INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
KILDARE COUNTY COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD)
- AND -
(REPRESENTED BY AGEMO TRADE GROUP)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal of Rights Commissioners Recommendation IR15406/03/LM and IR15407/03/LM.
2. The workers concerned are employed as waterworks and sewerage caretakers with Kildare County Council. Their terms and conditions of employment are set nationally. As part of their 39 hours week commitment there is a contractual obligation to provide cover at weekends. For this weekend commitment the Council pay €63 per week over and above their base pay rate.
A claim was made on behalf of the workers for overtime rates to be paid for their commitment to work weekends. The Council rejected the claim.
The issue was referred to a Rights Commissioner for investigation and recommendation. In her recommendation which issued on the 3rd of March 2005, she recommended that the workers
... be paid the relevant revised rates as received by new entrants and
... that the workers receive a sum of monies in respect of weekend work done retrospective to June 1st 2003. Agreement to be reached on quantifying that amount by both parties.
The Council appealed the recommendation to the Labour Court on the 7th April 2005, in accordance with Section 13(9), of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 24th August, 2005.
3. 1.It is the Council's position that the workers provided a 39 hour over seven day commitment. they have not produced any evidence that would suggest otherwise.
2. The workers are both in receipt of a weekend allowance for work undertaken at weekends.
3. There is no justifiable case for the payment of retrospection as the two workers were paid the nationally agreed weekend allowance over the period in question.
4. 1.The workers concerned have a 39 hour over five day contract of employment with the Council.
2. The allowance of €63 is for the commitment to work weekends and is an availability allowance.
3. All work carried out at weekends should be remunerated at the proper rate for weekend work.
The Court has considered the submissions of the parties to this appeal and has reached the following conclusions:
1. In future the Council should adhere to the terms of the relevant national agreement in determining the terms and conditions for Waterworks Caretakers and in the organisation of the duties of the grade. Consequently the Court does not consider it either necessary or appropriate to require the Council to enter into the process of discussion recommended by the Rights Commissioner.
2. The Court is of the view that the claimants should be paid for any overtime which they worked (in excess of their contract hours of 39 per week). In that regard it would appear that the only records available indicate that in practice the claimants have worked 39 hours between Monday and Friday. It follows that any hours worked on weekends was in excess of their contract hours and this should be paid at overtime rates.
3. Accordingly the Court upholds the Rights Commissioner's Recommendation that the claimants be paid overtime on the same basis as their colleagues with whom comparison was drawn. The Court also upholds the Rights Commissioner's Recommendation that the payment be retrospective to 1st June 2003.
The Court wishes to make it clear that its decision at 2 and 3 above relates to overtime actually worked in the past. For the future the position should be governed by the terms of the National Agreement.
The Rights Commissioner recommendation is amended accordingly.
Signed on behalf of the Labour Court
30th August, 2005______________________
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.